Since December, the Labor Commissioner has twice revised its new form, most recently effective April 12, 2012. A Word version of the form can be found here. In addition, the Department revised its Frequently Asked Questions regarding the new law and the form, which can be found here.
Until recently, however, no California appellate case had ruled that an employer who chooses to terminate an employee subject to a non-compete “out of respect and understanding with colleagues in the same industry,” may be sued for wrongful termination in violation of public policy. But that’s exactly what happened in Silguero v. Creteguard, Inc., a case decided by the Second Appellate District in Los Angeles on July 30, 2010 (Case No. B215179).
Medical leave management is one of the more difficult issues faced by human resource professionals. The interplay of Workers’ Compensation and federal and state disability discrimination and leave laws, and the entitlement of an employee to a leave of absence as a result of an industrial injury is confusing, and the decisions are not only risky, but often complicated by conflicting demands of management and notions of good sense and caution. An injured employee’s inability to return to work, or to perform the essential functions of her job as a result of the injury, generates questions about how to manage long periods of absence, confusing or ambiguous directives from the employee’s treating physician, and accommodations necessitated by the employee’s permanent or temporary limitations, if she is nevertheless released to return to work.
A recent California Court of Appeal decision provides useful guidance on this confusing interrelationship. The court in Gelson’s Markets v. Workers’ Compensation Appeals Board (November 13, 2009, No. B209336, Court of Appeals of California, Second District, Division Three) sided with the employer in overturning a decision of the WCAB, which, the court found, had applied the incorrect standard of proof to the employee’s claim of discrimination under Labor Code section 132a, which prohibits discrimination against employees injured in the course and scope of their employment.
What is particularly interesting about the decision is how the employer dealt with confusing and ambiguous directives from the employee’s physician, and the conflicting opinion of the employee about his readiness to return to work without limitations. This process went on for an extended period of time. And, three years after the injury, when the employer willingly return the employee to work upon finally receiving an unambiguous release, the employee filed a petition against the employer claiming discrimination under 132a for failing to return him to work much earlier.
The employer engaged in proactive, regular direct contacts with the doctor and the employee, continually requesting clarification and detailed information on the employee’s ability to perform the essential function of the job and the resolution of the conflicting opinion, or desire, of the employee. When the employee demanded to return to work in the face of a contrary doctor’s opinion, the employer refused. When the doctor modified his report to allow the employee to return to work, based solely on the desire of the employee, without any medical justification, the employer still refused to return the employee to work.
The WCAB found against the employer and awarded lost wages. But the Court of Appeal reversed this ruling, finding that the WCAB had applied the wrong standard and that the employee had not been “singled out” for discriminatory treatment. It confirmed that “… to establish a prima facie case of discrimination in violation of section 132a, the employee must show that he suffered an industrial injury, that the employer caused him to suffer some detrimental consequences as a result, and that the employer singled out the employee for disadvantageous treatment because of his injury.” The Court reaffirmed the validity of the test adopted by the California Supreme Court in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281. In summary, the employer’s behavior was reasonable and there was not proof anyone would have been treated any differently.
Stephen C. Gerrish, Employment Group